Slade v Kempsey Shire Council

[2018] NSWCA 25

NSW Court of Appeal

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Interrogate

Catchwords

1. Environment and Planning
2. › Pollution
3. › Clean-up notices
4. › Recovery of clean-up costs by public authority
5. › Whether recovery dependent on compliance with EPA notice
6. › Protection of the Environment Operations Act 1997 (NSW), ss 91, 92, 104, 105
1. Environment and Planning
2. › Pollution
3. › Clean-up notices
4. › Voluntary clean-up action by public authority
5. › Whether public authority may rely on s 92(2) where directed under s 92(1)
6. › Whether election between inconsistent rights
7. › Protection of the Environment Operations Act 1997 (NSW), s 92
1. Appeal
2. › New points on appeal
3. › Whether appellants permitted to raise contention not raised at trial
4. › Whether evidence could have been given to meet the point
5. › Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

Quick Take

A public authority directed by the EPA to take clean-up action under s 92(1) of the POEO Act may recover its clean-up costs under ss 104-105 even if it did not fully comply with the EPA's direction, because the clean-up action is independently authorised as voluntary action under s 92(2). Reliance on s 92(1) in compliance cost notices does not constitute an election precluding reliance on s 92(2). Receipt of an EPA direction under s 92(1) necessarily satisfies the reasonable suspicion precondition for voluntary action under s 92(2).